-K. Siladass, August 5, 2016.

The clarion call by the Chief Justice of Malaysia Tun Ariffin Zakaria is timely and has been made at the most appropriate time.  We are aware of the time honoured idiom: Power corrupts, absolute power corrupts absolutely. When power is vested in one person with diverse responsibilities, the natural tendency would be that person would not be able to devote much time to the problems that surface from time to time. Thus, when we try to understand the idiom, power corrupts, absolute power corrupts absolutely – what it means is that the person vested with too much power leading to absolute power will not be able to exercise it diligently; or, having too much power on his plate he is unable to exercise it prudently: therefore, the inability to act in a manner consistent with situation that arises from time to time could result in abusing power and in the extreme sense abusing it absolutely.

To put it in a nutshell, the failure or omission to act diligently as the circumstances demand could by itself mean abuse of the power. In other words, it is not only the exercise of the power in a manner inconsistent with the case that could lead to abuse of power but the omission or failure, whether it be deliberate or due to extraneous circumstances, should be classified as abuse of power.

The current position of the Attorney-General (AG) appears to be that he is unable to exercise his legal discretion in a manner befitting his high office. In the circumstances, it would be appropriate that the judicial and legal services be led by two different persons. The present position is that, the AG being the head of the prosecution and the head of the judicial services (Magistrates and Session Court Judges) is illustrative of the elements of bias seeping in and the steady stream of the judiciary polluted by suspicion that the judicial services cannot go against its own head.

Lord Denning’s advice would be apt at this juncture. He said:

“The keystone of the rule of law in England has been the independence of the judges. It is the only respect in which we make any real separation of powers. There is here no rigid separation between the legislative and the executive powers: because the Ministers, who exercise the executive power, also direct a great deal of the legislative power of Parliament. But the judicial power is truly separate. The judges for the last 250 years have been absolutely independent. And when I speak of judges, I include not only the High Court judges, but also all the magistrates and others who exercise judicial functions. No member of the Government, no Member of Parliament, and no official of any Government Department, has any right whatever to direct or to influence or to interfere with the decisions of any of the judges. It is the sure knowledge of this that gives the people their confidence in the judges – and I would add also the chairmen of tribunals when they are independent of the executive, for then they too are judges. It does not depend on the name “judge” or “chairman” but on the substance. The critical test which they must pass if they are to receive the confidence of the people is that they must be independent of the executive.”

(The Changing Law, Sir Alfred Denning, Second Impression 1953, pg 4)